PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Death During Litigation. Procedural Impediments to Continuing the Lawsuit.

How does a surviving party continue with the litigation when the opposing party dies and no estate is opened? Can the court appoint a representative to represent the decedent’s interests in the litigation? This question was answered in Gomez v. Fradin, 199 So. 3d 554 (Fla. 4th DCA 2016).

In Gomez, the defendant died during the course of the litigation. The plaintiff, an unliquidated creditor of the estate, petitioned the trial court to appoint a representative for the decedent in their proceeding for breach of fiduciary duty because no estate had been opened for the deceased. The trial court concluded that it had no authority to appoint a representative and denied the motion, noting that the plaintiffs could petition for administration in the probate court. The appellate court affirmed on the same basis, citing Harrison-French v. Elmore, 684 So. 2d 323 (Fla. 3d DCA 1996) and In re Estate of Raymond, 237 So. 2d 84 (Fla. 1st DCA 1970). Judge Warner, in his concurring opinion, reasoned that there is no authority in statute or rule for the trial court to appoint either an administrator ad litem or a guardian ad litem to represent the deceased in the litigation without first opening an estate.

In Harrison-French, an order requiring the attorney for a civil defendant who died during the pendency of a negligence action to open that person’s estate and substitute the personal representative of the estate as party defendant was held to be improper because the attorney was the defendant’s representative only for the purpose for which he was retained, i.e., to defend the negligence action, and consequently, the court was without authority to order him to undertake other matters.

PRACTICE TIP: A creditor should jump at the chance to open an estate for the deceased opposing party. Assuming the creditor is appointed as curator for the estate, the letters of curatorship entitle the curator to possession and control of the decedent’s property, which the court may enforce through contempt proceedings. In addition, the court can authorize the curator to perform any duty or function of a personal representative. See §733.501(1), F.S. and Fla. Prob. R. 5.122. In this way, the creditor can obtain all of the decedent’s financial and email information without a subpoena.